Moore v. Bryant, CAUSE NO. 3:16-CV-151-CWR-FKB

• Decision Date: 08 September 2016
• Docket Number: CAUSE NO. 3:16-CV-151-CWR-FKB
• Citation: 205 F.Supp.3d 834
• Parties: Carlos E. MOORE, Plaintiff v. Governor Phil BRYANT, in his Official Capacity, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

205 F.Supp.3d 834

Carlos E. MOORE, Plaintiff

v.Governor Phil BRYANT, in his Official Capacity, Defendant.

CAUSE NO. 3:16-CV-151-CWR-FKB

United States District Court, S.D. Mississippi, Northern Division .

Signed September 8, 2016

Justin D. Smith, Tameika L. Bennett, Moore Law Group, PC, Grenada, MS, for Plaintiff.

Carlos E. Moore, Grenada, MS, pro se.

Douglas T. Miracle, Harold Edward Pizzetta, III, Mississippi Attorney General's Office, Jackson, MS, for Defendant.

MEMORANDUM OPINION AND ORDER

Carlton W. Reeves, UNITED STATES DISTRICT JUDGE

Plaintiff Carlos Moore filed this lawsuit against Governor Phil Bryant challenging the constitutionality of the Mississippi state flag. The flag includes the Confederate battle emblem in the top left corner. Moore alleges that the incorporation of the Confederate battle emblem in the state flag violates the Thirteenth Amendment as well as various clauses of the Fourteenth Amendment.

Before reaching the merits of the case, the Court asked the parties to submit simultaneous briefing on standing and the political question doctrine. The parties did so and presented oral argument on April 12, 2016.¹ After considering the briefing, oral argument, and applicable law, the Court is ready to rule.

I. Factual and Procedural Background

A. The Parties

Carlos Moore is an African-American attorney and Mississippi native who has lived in the state for most of his life. He resides in Grenada, Mississippi where he operates his own law firm and represents clients in state and federal courts throughout Mississippi.

Governor Phil Bryant, the chief executive officer of the state, is sued in his official capacity. He is statutorily mandated to "see that the laws are faithfully executed."²

B. Constitutional Claims

Moore contends that Mississippi's state flag "is tantamount to hateful government speech [which has] a discriminatory intent and disparate impact" on African-Americans, in violation of the Equal Protection and Privileges and Immunities Clauses of the Fourteenth Amendment.³ He alleges that this hate speech damages him personally along with all other African-American residents of Mississippi,⁴ causing him to suffer physical and emotional injuries, and "incit[ing] private citizens to commit acts of racial violence."⁵ Additionally, Moore contends that the Confederate battle emblem is a vestige of slavery prohibited by the Thirteenth Amendment.⁶

To support his allegation that the Confederate battle emblem incites racial violence, Moore points to the June 2015 mass killing of nine African-Americans at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. In addition, he cites a November 2015 incident at a Wal-Mart in Tupelo, Mississippi when a man set off an explosive to protest Wal-Mart's decision to cease the sale of Confederate-themed merchandise. Finally, Moore references a 2014 hate crime at the University of Mississippi where university students draped a noose and the former Georgia state flag—which contained the Confederate battle emblem—around the neck of a statue of James Meredith, the University's first African-American student.⁷

Moore argues that the Governor should be enjoined from enforcing state statutes that adopt the flag's design and mandate or allow it to fly on public property.⁸

Although the Governor has not been required to answer these specific allegations, he has filed a motion to dismiss contending that Moore's allegations fail to state a plausible claim for relief.

II. Historical Context

A. The Origin of the Confederate Battle Flag

Moore's claims challenge the constitutionality of the Mississippi state flag; however, his allegations hinge on the Confederate battle emblem contained in the state flag. Thus, the appropriate starting point is the historical landscape which spawned such a divisive emblem.

On January 9, 1861, Mississippi followed South Carolina's lead and became the second state to secede from the Union. Some argue that Mississippi's decision to secede was not at all connected to slavery, and instead assert that it was in response to an overreach of the federal government. Those who put forth this narrative need only read Mississippi's Declaration of Secession. It said:

In the momentous step which our State has taken of dissolving its connection with the government of which we so long formed a part, it is but just that we should declare the prominent reasons which have induced our course.

Our position is thoroughly identified with the institution of slavery —the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation.

There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin.⁹

To put it plainly, Mississippi was so devoted to the subjugation of African-Americans that it sought to form a new nation predicated upon white supremacy. As Confederate Vice President Alexander H. Stephens stated in March 1861, the "corner-stone" of the Confederacy "rests upon the great truth that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition. This, our new government, is the first in the history of the world, based upon this great physical, philosophical, and moral truth."¹⁰ Although America's Constitution initially fell short of its promise to treat all people equally,¹¹ the Constitution of the Confederate States of America was a definitive step backward. It "overtly protected ‘Negro slavery’ "¹² by codifying the exclusion of people of African descent from civil protections in perpetuity.¹³ In short, a core tenet of the Confederate Constitution "was the interminable white man's right to own black slaves."¹⁴

At his inauguration in February 1861, Confederate President Jefferson Davis said, "[t]he time for compromise has now passed, and the South is determined to maintain her position, and make all who oppose her smell Southern powder and feel Southern steel."¹⁵ On April 12, 1861, the Civil War began at Fort Sumter in South Carolina. A bloody four years followed, during which more American soldiers died than in any war before or since.¹⁶ In reflection of the war, President Lincoln noted: "All dreaded it, all sought to avert it.... Both parties deprecated war but one of them would make war rather than let the nation survive and the other would accept war rather than let it perish, and the war came."¹⁷

The banner commonly referred to as the "Confederate flag" was not the flag of the Confederacy; it was adopted primarily for use by Confederate armies during battle.¹⁸

While the battle flag never flew as the official pennant for the Confederacy,¹⁹ it nevertheless is the most recognized symbol of the Confederacy.

B. Keeping the Spirit of the Confederacy Alive

Upon the readmission of the Confederate states to the Union, the South committed itself to two "new" causes—the continuation of a racial caste system and the endurance of Antebellum culture. During Reconstruction, organizations like the Ku Klux Klan, Knights of the White Camellias, and the White League sought to preserve white supremacy by using intimidation and violence to terrorize African-Americans.²⁰

In 1866, there were riots in Memphis and New Orleans; more than 30 African-Americans were murdered in each melee.²¹ In 1874, 29 African-Americans were "massacre[d]" in Vicksburg, according to Congressional investigators.²² The next year, "amidst rumors of an African-American plot to storm the town," the Mayor of Clinton, Mississippi gathered a white "paramilitary unit" which "hunted" and killed an estimated 30 to 50 African-Americans.²³ Violence also broke out in Meridian, Austin, and Yazoo City, among many other towns in Mississippi.²⁴ The death and destruction, moreover, were not confined to the borders of the Southern states.²⁵ Racial violence continued through the 1870s as local Klan groups lynched, beat, burned, and raped African-Americans.²⁶ Despite the Klan's record of violence, "Southerners romanticized it as a chivalrous extension of the Confederacy."²⁷

Alongside the terror permeating the South, there was a prominent movement to ensure the "proper" historical recollection of the Civil War—that the Southern cause had been just and necessary. This campaign was taken up by Confederate veterans and social groups.²⁸ Women's auxiliary groups initially organized locally, but evolved into an influential national organization called the United Daughters of the Confederacy (UDC).²⁹ By 1912, the UDC had 45,000 members spread across over 800 chapters.³⁰ It raised funds for Confederate monuments, promoted the celebration of Confederate holidays, maintained Confederate museums, and established "Children of the Confederacy" educational programs.³¹ Children in these programs learned history in the form of catechisms (a series of fixed questions and answers used for instruction), a method typically reserved for teaching religious doctrine.³² As one historian noted, "to the children memorizing the UDC's catechisms, not only did the correct answers come from the truth-telling chapter leaders, but more importantly, they came straight from God."³³

What the South lost on the battlefield, it sought to recover in the collective memory of the next generation. "We have pledged ourselves to see that the truth in history shall be taught," proclaimed UDC officer Kate Noland Garnett, and there "shall be no doubt in the minds of future generations as to the causes of the war, and why...